In editing Heller for the supplement to my new casebook, Constitutional Law: Cases in Context (Aspen 2008), I noticed a reference to the great Lysander Spooner in Justice Scalia's opinion that I had previously overlooked. The following passage is worth reading in its entirety due to its relevance to the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment:

Antislavery advocates routinely invoked the right to bear arms for self-defense. Joel Tiffany, for example, citing Blackstone's description of the right, wrote that "the right to keep and bear arms, also implies the right to use them if necessary in self defence; without this right to use the guaranty would have hardly been worth the paper it consumed." A Treatise on the Unconstitutionality of American Slavery 117--118 (1849); see also L. Spooner, The Unconstitutionality of Slavery 116 (1845) (right enables "personal defence"). In his famous Senate speech about the 1856 "Bleeding Kansas" conflict, Charles Sumner proclaimed:

"The rifle has ever been the companion of the pioneer and, under God, his tutelary protector against the red man and the beast of the forest. Never was this efficient weapon more needed in just self-defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached. And yet such is the madness of the hour, that, in defiance of the solemn guarantee, embodied in the Amendments to the Constitution, that 'the right of the people to keep and bear arms shall not be infringed,' the people of Kansas have been arraigned for keeping and bearing them, and the Senator from South Carolina has had the face to say openly, on this floor, that they should be disarmed—of course, that the fanatics of Slavery, his allies and constituents, may meet no impediment." The Crime Against Kansas, May 19--20, 1856, in American Speeches: Political Oratory from the Revolution to the Civil War 553, 606--607 (2006).

Perhaps some commentator can do a Westlaw or Lexis search to confirm that this is the first time Spooner has been cited by the Supreme Court.

While I am on the subject of the Fourteenth Amendment—the next likely judicial battleground over the right to arms—here is Justice Scalia's discussion of Post-Civil War Legislation (which Dale excerpted on Friday):

In the aftermath of the Civil War, there was an outpouring of discussion of the Second Amendment in Congress and in public discourse, as people debated whether and how to secure constitutional rights for newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth Amendment, and the Right to Bear Arms, 1866--1876 (1998); Brief for Institute for Justice as Amicus Curiae. Since those discussions took place 75 years after the ratification of the Second Amendment, they do not provide as much insight into its original meaning as earlier sources. Yet those born and educated in the early 19th century faced a widespread effort to limit arms ownership by a large number of citizens; their understanding of the origins and continuing significance of the Amendment is instructive.

Blacks were routinely disarmed by Southern States after the Civil War. Those who opposed these injustices frequently stated that they infringed blacks' constitutional right to keep and bear arms. Needless to say, the claim was not that blacks were being prohibited from carrying arms in an organized state militia. A Report of the Commission of the Freedmen's Bureau in 1866 stated plainly: "[T]he civil law [of Kentucky] prohibits the colored man from bearing arms. . . . Their arms are taken from them by the civil authorities… . Thus, the right of the people to keep and bear arms as provided in the Constitution is infringed." A joint congressional Report decried:

"in some parts of [South Carolina], armed parties are, without proper authority, engaged in seizing all fire-arms found in the hands of the freemen. Such conduct is in clear and direct violation of their personal rights as guaranteed by the Constitution of the United States, which declares that 'the right of the people to keep and bear arms shall not be infringed.' The freedmen of South Carolina have shown by their peaceful and orderly conduct that they can safely be trusted with fire-arms, and they need them to kill game for subsistence, and to protect their crops from destruction by birds and animals." Joint Comm. on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton).

The view expressed in these statements was widely reported and was apparently widely held. For example, an editorial in The Loyal Georgian (Augusta) on February 3, 1866, assured blacks that "[a]ll men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves." Halbrook 19.

"[T]he right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens … without respect to race or color, or previous condition of slavery… . " 14 Stat. 176--177.

The understanding that the Second Amendment gave freed blacks the right to keep and bear arms was reflected in congressional discussion of the bill, with even an opponent of it saying that the founding generation "were for every man bearing his arms about him and keeping them in his house, his castle, for his own defense." Cong. Globe, 39th Cong., 1st Sess., 362, 371 (1866) (Sen. Davis).

Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment . For example, Representative Butler said of the Act: "Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to 'keep and bear arms,' and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same." H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7--8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three "indispensable" "safeguards of liberty … under the Constitution" a man's "right to bear arms for the defense of himself and family and his homestead." Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because "[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense." Id., at 1073 (1866).

It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense.

LIberal USSC Justices and politicians should be ashamed. So should the liberal Law Professors. Shame. It is also to be noted the the Black politicians are insane to support gun control. Have they lost all sense of reality. Shame.

LIberal USSC Justices and politicians should be ashamed. So should the liberal Law Professors. Shame. It is also to be noted the the Black politicians are insane to support gun control. Have they lost all sense of reality. Shame.

The only thing I don't like about VC is that it's hard for me to tell sometimes which commenters are serious and which are parodies.

Sumner was lashing out at the Militia Law that only enabled "white men" to bear arms in the service of the militia.

Same thing after the civil war under Andrew Johnson. The southern states were the wards of national government, and during the freedmen's bureau enactment it was charged Johnson had no authority to prevent blacks from forming militias because it was the duty of the govt to arm them, not disarm them.

While we're on the subject of Amendment XIV, I wonder what avenue will be argued as the appropriate method of incorporation, assuming that incorporation is argued under the 14th.

Will the Supreme Court revitalize the Privileges or Immunities Clause in the wake of The Slaughterhouse Cases? Will they continue on the shaky ground of "substantive due process"?

My personal feeling is that incorporation of Amendment II will likely happen through the reinvigoration of the Privileges or Immunities Clause, largely because the case can then be made that incorporation would then be limited to citizens, despite the clear language of Amendment II and the definition of "the people" promulgated by the Court in Heller and Verdugo-Urquidez.

Conservatives will generally find this more acceptable in the current environment (see discussions relating to Boumediene, and generally, conservative opposition to "substantive due process"), and liberals will have to concede that if incorporation seems likely, this is the most likely avenue for a continuing restriction of firearms ownership to the smallest subset of the population possible.

If the Court goes with a "substantive due process" argument, they the right must be opened up to the "any person" of the Due Process Clause.

Its a shame that the Privileges or Immunities Clause was not written as "the people", at the very least, or even "any person", because as such, citizens would still have a larger set of "privileges or immunities" than "the people" or "any person". We might have had a much more clear jurisprudence as a result.

Who would argue that not every person possesses the right of legitimate self-defense?

I can hope for a more broad reading of Amendment II that finds it self-incorporating, or an alternative and possibly novel method of incorporation that achieves the same ends, but the political climate tends to indicate differently.

Supremacy v. Incorporation
Does it make sense to make that point that since militias are "necessary for the security of the free state" and that militias are derived from the "whole body of the people" that for a state to deny RKBA is to eliminate the resources available to the national government under Article 1 Section 8? Congress can call out a disarmed militia, but it sure won't be able to do anything if it is disarmed by the state governments, nor can a non-functional militia be considered "well-regulated." Don't even need the 14th Amendment to get there. From a legal theory perspective you can't argue other than the Bill of Rights historically did not apply to the states. Using this approach you don't really have to. Pretty clear to me based on the history that the 2nd DOES apply to the states after the 14th, notwithstanding Cruikshank or Presser.

Heller is indeed the first U.S. Supreme Court citation of Spooner's work; it also represents the first judicial citation of Unconstitutionality of Slavery (other of Spooner's works have been referenced in non-Scotus judicial opinions).

VC readers might also be interested to know:
(a) The Spooner quotation used in Heller actually appears on p. 98 (not 116) of Unconstitutionality of Slavery; more understanding of Spooner's thoughts on the 2nd Amendment can be gained from reading his discussion on p. 66, where he considers the Amendment's relationship to his main argument about the relationship between constitutional interpretation and natural rights/justice.
(b) In an 1849 letter to the abolitionist Gerrit Smith, Spooner laid out the introduction of his argument (alas, he said he would go into this in detail in Part III of his slavery treatise, which was either never written or never published) as to why, in contrast to other sections of the Bill of Rights which bind only the federal government, the 2nd Amendment "applies to both governments."

The 14th was the radical intent of the Radical Republicans, not the counterrevolutionary reaction of Plessy. At least the current court got the 2nd right. Too bad Scalia will only cite Spooner selectively.

RKV: Does it make sense to make that point that since militias are "necessary for the security of the free state" and that militias are derived from the "whole body of the people" that for a state to deny RKBA is to eliminate the resources available to the national government under Article 1 Section 8? Congress can call out a disarmed militia, but it sure won't be able to do anything if it is disarmed by the state governments, nor can a non-functional militia be considered "well-regulated." Don't even need the 14th Amendment to get there.

Since Congress explicitly has power "to provide for . . . arming . . . the militia," I don't think that argument would carry much weight. State governments would never be able to disarm the militia if the federal government was intent on arming it. Unfortunately, Congress has no such intent. Even the laws establishing the Civilian Marksmanship Program provide that arms transferred under the program cannot be transferred in violation of state or local law -- a pathetic reversal of the Supremacy Clause.

"Overturning Slaughterhouse and returning the P&I clause to the clear precedence it held in the drafting of the 14th Amendment vis a vis Dred Scott would be one of the best overturns ever."

Huh? The clear precedence of the 14th's P&I's was established on January 30, 1781 by the entire House Judiciary Committee lead by Rep. John Bingham. That House Reports says incorporating the Second Amendment through the P&I's under the Fourteenth Amendment to operate on a States own resident citizens is impossible.

Overturning Slaughterhouse and returning the P&I clause to the clear precedence it held in the drafting of the 14th Amendment vis a vis Dred Scott would be one of the best overturns ever.

While it would certainly be a great thing to reinvigorate the Privileges or Immunities Clause, one of the primary arguments in favor of substantive due process is that it is more inclusive because the Due Process Clause specifies "any person", whereas the Privileges or Immunities Clause specifies "citizens" only.

I think it one of the great examples of a lack of foresight in the Constitution. Surely, all persons are entitled to many of the benefits of the Constitution to which the citizens are also entitled, and certainly the right of self-defense upon which the Heller decision rests is included in that class.

Ironically, Heller refers to Verdugo-Urquidez, in possibly the only excerpt from that case to which I cannot take exception (the definition of "the people"). In my opinion, Verdugo-Urquidez was one of the worst decisions in the history of the Court. The dissent definitely had the right of that argument. While the majority is correct in asserting that Verdugo-Urquidez does not necessarily qualify for inclusion in the set of "the people", it is difficult to understand the rationale that the agents involved were under no stricture to adhere to Amendment IV.

This is the sort of argument that would entail in any assertion of incorporation under the Privileges or Immunities Clause, although in the case of Verdugo-Urquidez, one can also make a solid argument that the provisions of Amendment IV can also be incorporated under a procedural due process argument. The way in which Verdugo-Urquidez was treated flies in the face of everything we believe about how the agents of our government are expected to comport themselves in the administration of their duties. While the actions in question took place on foreign soil, the defendant was prosecuted under United States jurisdiction.

I think it of great significance that the word "citizen" appears in no part of the text of the Bill of Rights, and I think it concrete evidence that the protections of the Bill of Rights were meant to protect all people "subject to the jurisdiction thereof". Though this particular term does not appear in the Bill of Rights, it can be argued that though citizens must be "born or naturalized" *and* "subject to the jurisdiction thereof", there exists the possibility of a class of persons that are not citizens, nor part of the "people", who are yet "subject to the jurisdiction thereof", such as foreign nationals being prosecuted under US law, to whom the protections of the Constitution ought rightfully to be applied.

Again, should incorporation take place under the Privileges or Immunities Clause, we face a clear contradiction between the term "the people" in Amendment II and the term "citizens" in Amendment XIV. This will likely be allowed to stand due to political expediency, because conservatives will welcome limiting arms rights to citizens only, and liberals will welcome any limitations they can discover.

I only hope that my posts here are not cited by posterity as the genesis of such a terrible compromise.

"I think it of great significance that the word "citizen" appears in no part of the text of the Bill of Rights, and I think it concrete evidence that the protections of the Bill of Rights were meant to protect all people "subject to the jurisdiction thereof."

No it is of no "great significance" if you ever read Madison's convention remarks and also Rep. Bingham's long winded speech over the words "persons," "people" and "citizens."

Huh? The clear precedence of the 14th's P&I's was established on January 30, 1781 by the entire House Judiciary Committee lead by Rep. John Bingham. That House Reports says incorporating the Second Amendment through the P&I's under the Fourteenth Amendment to operate on a States own resident citizens is impossible.

If you're going to bring up this argument again, you should establish why a statement made by the HJC five years before the ratification of Amendment XIV that clearly contradicts the language of the amendment as ratified should have any bearing on its interpretation or construction. Personally, I don't see it.

Since this is in response to a post of Professor Barnett's, you should be made aware, if you are not already, of Professor Barnett's espousal in his previous writings of the supremacy of the meaning of the language actually enacted over the framers' prior stated intent.

"If you're going to bring up this argument again, you should establish why a statement made by the HJC five years before the ratification of Amendment XIV that clearly contradicts the language of the amendment as ratified should have any bearing on its interpretation or construction. Personally, I don't see it."

That is because you are challenged with basic arithmetic. The Committee Report was from the year 1871 which makes it impossible to have been 5 years before the adoption of the Fourteenth. It was 3 years after the adoption of the amendment, not before.

have difficulty with mathdon't see the committee report actually came THREE years after the Fourteenth Amendment had been adopted, not 5 years before it was!!!!

When I first read the opinion, I noted the Spooner cite (but couldn't get on the blog to post that day). Randy was cited twice in Heller, but I'm definitely giving him an assist on the Spooner cite, so I'm crediting Randy with 2-1/2 cites in Heller.

Now if the Supreme Court ever cites to "Trial By Jury" that'll really be interesting!

I find highly unusual that the racial aspects of the Heller opinion have been ignored by the liberal media. You would think if liberals had written an opinion that cast the constitutionality of slavery in doubt as an original matter, the MSM would be airing 3-part specials on reparations and every black law professor would be on C-SPAN 24/7 for the next ten weeks.